HKSAR v. JOOF SAIHOU

CACC 252/2017

[2018] HKCA 362

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 252 OF 2017

(ON APPEAL FROM HCCC NO 163 OF 2016)

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REASONS FOR JUDGMENT

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Hon Zervos J (giving the Reasons for Judgment of the Court):

1.  The applicant applied for leave to appeal the sentence of 10 years and 8 months’ imprisonment imposed on him by Madam Justice Anthea Pang (the judge) on 21 July 2017, following his conviction on his own plea to a single count of trafficking in a dangerous drug, namely, 893 grammes of a solid containing 397 grammes of cocaine, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134, on 10 April 2017.

2.  Having refused leave and dismissed the application, we indicated that we would hand down our reasons in due course.  This we now do.

The grounds of appeal

3.  In the papers filed by the applicant with the Court, he advanced two grounds of appeal. 

4.  The first ground was that no reduction to his sentence was accorded to him for the cooperation and assistance he rendered the police after his arrest.  He complained that there was no mention of his co-operation with the police by admitting his guilt and providing details to them.

5.  The second ground was that the enhancement of his sentence by 1 year for being a Form 8 recognizance holder at the time of the offence was not in line with enhancements given in other cases, which were usually 6 months’ imprisonment.  By way of example, he cited the sentences passed at first instance in two cases: HKSAR v Zossou Elie[1] and HKSAR v Abedin Minhajaul.[2]

The admitted facts

6.  The facts admitted by the applicant giving rise to the offence were as follows.  On the evening of 8 October 2015, plainclothes police officers carried out an anti-dangerous drugs operation in the vicinity of K11 Shopping Centre, Tsim Sha Tsui, Kowloon.

7.  The officers observed the applicant, who was holding a plastic bag, behaving suspiciously outside the shopping centre.  The officers called out to the applicant but he immediately fled.  They gave chase, and quickly caught up with him.  After struggling with the officers, he was eventually subdued.  

8.  The officers searched the plastic bag that he was holding, and found inside two paper boxes, containing a total of 45 pellets, which on later analysis were confirmed to consist of a total quantity of 893 grammes of a solid, containing 397 grammes of cocaine.  The dangerous drug at the time had an estimated street value of $951,938. 

9.  The applicant was arrested and cautioned for the offence of trafficking in dangerous drugs.  A search of his person uncovered cash of $430 and a mobile telephone.  A search of his residence was later carried out but nothing illicit was found.

10.  In a subsequent video recorded interview, the applicant stated that he was a Form 8 recognizance holder.  He said he was from Gambia and had come to Hong Kong in December 2014 to do business, namely, purchasing telephones. 

11.  He maintained that he had never opened the plastic bag that he was carrying at the time of the arrest.  He claimed that a Nigerian friend nicknamed “AZ” asked him to take the plastic bag to the 7-Eleven Store behind the shopping centre.  He was given the plastic bag by an agent of AZ in Mirador Mansion about 10 minutes before his arrest.  He said he received no reward for delivering the plastic bag and the money found on him was given to him by his Indonesian girlfriend.  He said that this was the first time he had helped AZ out.

12.  It was agreed by the applicant in the admitted facts that he was trafficking in the dangerous drugs found in the plastic bag.

The mitigation

13.  The background and personal particulars of the applicant were that he was 29 years of age at the time of sentence with no previous convictions. He was a Gambian national, who was educated up to grade 10 in his home country.  He was married with no children, and had worked as a factory worker. He came to Hong Kong legally in 2014 and applied for asylum.  He was granted a recognizance to stay. 

14.  It was submitted on his behalf that he had never dealt with, or used, dangerous drugs prior to this offence.  It was explained that he became involved in the offence out of loyalty to his friends.  The person  named AZ cultivated a friendship with him and, together with another person named “Happy”, groomed him to deliver the dangerous drugs.

15.  In addition to the applicant’s guilty plea, the court was asked to take into account the following matters and impose a lenient sentence on him.  First, it was suggested that there was an element of entrapment as the applicant was asked to deliver the dangerous drug to where the police were waiting.  Secondly, it was noted that although the assistance he provided to the police did not lead to any positive result, he did try to help. 

The reasons for sentence

16.  The judge referred to the appropriate sentencing guidelines laid down in R v Lau Tak Ming,[3] which were equally applicable to cocaine as they were to heroin, noting that the appropriate starting point for trafficking in 200 to 400 grammes of cocaine, was in the range of 12 to 15 years’ imprisonment.  

17.  The judge adopted a starting point of 15 years’ imprisonment for the quantity of cocaine narcotic involved of 397 grammes, and enhanced it by 1 year on the basis that the applicant committed the offence when he was a Form 8 recognizance holder.

18.  The judge granted the applicant a one-third discount for his guilty plea, but noted there were no other mitigating factors that warranted a further reduction to his sentence.  She explained that according to authority, credit would not be given to a defendant for assistance that was of no value.  She disagreed that there was an element of entrapment, noting that the applicant took the plastic bag, knowing it contained a dangerous drug, and continued to make the delivery.  She found that there was nothing in his personal circumstances that would justify a further reduction to his sentence.

19.  The judge sentenced the applicant to a term of 10 years and 8 months’ imprisonment, after she reduced the starting point of 16 years’ imprisonment by one third for his guilty plea. 

The respondent’s submissions

20.  Ms Claudia Ng, on behalf of the respondent, submitted that the judge’s adoption of a starting point of 15 years’ imprisonment was in accordance with the relevant sentencing guidelines.  In enhancing the starting point by 1 year in view of the applicant’s status as a Form 8 recognizance holder, she submitted that the judge was following the relevant sentencing principles, and that it was entirely appropriate. 

21.  Ms Ng noted that the two cases referred to by the applicant on the question of the enhancement were not apposite, and in any event the approach on appeal is to determine whether the court that has passed the sentence under consideration has fallen into appealable error.  On this issue, she referred to the comments of McWalters JA in HKSAR v Nwadiuto Samuel Joseph,[4] where he said that in the absence of appealable error all an applicant can show is that another offender in a wholly unrelated case has been treated more leniently than he, and that this was not enough reason for an appellate court to interfere.

22.  Of the applicant’s co-operation with the police after his arrest, Ms Ng referred to this Court’s decision in Secretary for Justice v Lee Chun Ho, Jeef, where it was held that an offender’s co-operation with the police by his admission of the offence to them, both at the scene of the crime and at the police station, was just part and parcel of the offender’s admission of guilt, for which he was entitled to a one-third discount for his timely plea.

Discussion

23.  There can be no complaint with the starting point for the sentence adopted by the judge of 15 years’ imprisonment for 397 grammes of cocaine narcotic, which was within the range of sentence set by the relevant sentencing guidelines. 

24.  The applicant was also given the benefit by the judge of the full one third discount for his guilty plea.  The applicant claimed that he cooperated with the police at the time of his arrest by admitting his guilt and providing details to them yet no mention was made of this when he was sentenced.  Of his admission of guilt at an early stage, it was explained in Lee Chun Ho, Jeff that such mitigating factor is “subsumed within the one third discount.”  Of his assistance to the police, it was mentioned in his mitigation that he provided information to the police but it did not lead to anything. The highest it was put was that the applicant had tried to help.  The judge was correct in the circumstances of this case, relying on HKSAR v W,[5] not to give credit to him for assistance that was not meaningful, and for information that bore no fruit “in actually securing, directly or indirectly, the prosecution and conviction of the person concerned”.[6]  

25.  The judge recognised as an aggravating factor, warranting an enhancement of the sentence due to the very serious crime involved, the fact that the applicant was a Form 8 recognizance holder at the time of the offence of trafficking in a dangerous drug and specifically referred to the decision of this Court in HKSAR v Shah Syed Arif,[7] where this sentencing principle was explained.  In that case, this Court approved an enhancement of 1 year for an applicant, who was a Form 8 recognizance holder, in respect of the trafficking in 55.88 grammes of cocaine narcotic.  The judge also referred to HKSAR v Fitri,[8] where this Court stated that an enhancement of 1 year in respect of trafficking in 454.13 grammes of cocaine narcotic could not be criticized.

26.  In the case of HKSAR v Abedin Minhajaul, cited by the applicant, the defendant was convicted after trial of trafficking in a variety of dangerous drugs, consisting of cannabis in herbal form, cannabis resin, cocaine, ketamine and methamphetamine hydrochloride (commonly known as “Ice”).  The judge determined, by a method of conversion, that the dangerous drugs involved amounted to the equivalent of 52.8 grammes of Ice, and applying the sentencing tariff for Ice adopted a starting point of 9 years and 6 months imprisonment.  The judge then enhanced the starting point by 3 months for the cocktail of drugs, and a further 9 months for the fact that the defendant was a Form 8 recognizance holder at the time of the offence.

27.  In the case of HKSAR v Zossou Elie, also cited by the applicant,the defendant had pleaded guilty and was given a one-third discount on her sentence.  The dangerous drug involved was cocaine but the narcotic content was not mentioned in the reasons for sentence, although the starting point of 20 years’ imprisonment adopted by the judge would indicate on an arithmetic calculation that it would have been over 600 grammes.  The judge enhanced the starting point by 1 year on the basis that there was an international element to the offence and that the defendant was a Form 8 recognizance holder at the time of the offence.

28.  The sentences passed in other cases, particularly at first instance, are seldom of much utility when considering the appropriateness of a sentence in a particular case on appeal.  There are two main reasons for this.  The first is that no two cases are exactly alike: the circumstances of the offence and the offender will vary.  Indeed, a sentence reached in one case can sometimes be misleading if directly applied to another case on different facts and in different circumstances.   The second is that the task of an appellate court in examining whether the sentence passed was proper will invariably involve a consideration of whether the sentencing court has fallen into appealable error, not whether a lesser sentence was given in another unrelated case.[9]

29.  In a recent decision of this Court in HKSAR v Ali Saif,[10] Macrae VP stated:

“17. When Shah Syed Arif was decided, the Court was of the view that it was neither prudent nor possible to issue guidelines in respect of enhancements of sentence in respect of Form 8 recognizance holders for trafficking in dangerous drugs cases, considering that the enhancement of sentence was best left to the discretion of sentencing judges. However, we should say that we would not expect an enhancement for this factor to be less than 6 months’ imprisonment for a serious offence of trafficking in dangerous drugs in any case before the District or High Court. If the courts do not mark in a meaningful way the significance of a defendant’s betrayal of the trust placed in him by the people of Hong Kong, and the impact of that betrayal on the lives of its citizens and the reputation of this city, then Hong Kong risks becoming a magnet for foreign drug traffickers in the guise of non-refoulement applicants. Furthermore, Form 8 recognizance holders, whose non-refoulement applications may take several years to deal with, must be firmly discouraged from becoming involved in serious crimes, whilst their applications are being processed.”

30.  He went on to briefly mention the enhancements given in other authorities, noting that in drug trafficking cases the greater the quantity of narcotic content, the greater the enhancement.  He noted in HKSAR v Mahabul Alam Khan[11] that an enhancement of 15 months’ imprisonment was given in respect of 238.57 grammes of cocaine narcotic, which was followed by the judge at first instance in HKSAR v Musah Hakeem Tahiru[12] who enhanced the sentence for this factor by 16 months’ imprisonment for 256.73 grammes of cocaine narcotic, 18.76 grammes of Ice and a small quantity of herbal cannabis, and in HKSAR v Dramane Mouhamed Saiti[13] where the Court said that the applicant could have had his sentenced enhanced by as much as 18 months’ imprisonment for trafficking in 440 grammes of cocaine narcotic. 

31.  In light of the foregoing, the judge cannot be criticised for having enhanced the applicant’s sentence by 1 year for the fact that he was a Form 8 recognizance holder at the time of the offence.

Conclusion

32.  In our judgment, the overall sentence imposed by the judge was not wrong in principle or manifestly excessive.  There can be no complaint as to the enhancement of the sentence on the applicant by 1 year for being a Form 8 recognizance holder when he committed this serious crime.  The judge was correct not accord to the applicant any further reduction to his sentence, beyond the one third discount for his guilty plea, for his co-operation with the police by admitting his crime and for the provision of information that was of no value.  

33.  The application for leave to appeal against sentence was accordingly refused and the appeal was dismissed.

Macrae VP:

34.  I agree with the judgment of Zervos J.  However, as one of the authors of the judgment in Fitri, on which the judge in the present case relied, I would like to say something about that case, since it might appear to be somewhat out of step with the enhancements considered appropriate in Shah Syed Arif (12 months for 55.88 grammes of cocaine narcotic); Mahabul Alam Khan (15 months for 238.57 grammes of cocaine narcotic); Musah Hakeem Tahiru (16 months for 256.73 grammes of cocaine narcotic as well as a quantity of Ice and cannabis); and Dramane Mouhamed Saiti (up to 18 months for 440 grammes of cocaine narcotic).  In Fitri, the Court said that the sentencing court’s enhancement of 12 months for 454.13 grammes of cocaine narcotic could not be criticised.

35.  As Zervos J has said, comparisons with sentences passed in other cases can sometimes be misleading, because the circumstances of the offence and the offender will be different as between different cases.  Fitri is a good example of why one should be cautious about a direct comparison with sentences passed in other cases.  In that case, the Court was presented with an applicant who had trafficked in 454.13 grammes of cocaine narcotic.  However, unusually, she faced two significant aggravating features on the facts of her case.  First, she had facilitated the importation of the drugs into Hong Kong from Brazil and had had her sentence enhanced by 1 year for the so-called “international factor”; secondly, she was also a Form 8 recognizance holder and had had her sentence enhanced by 1 year for that factor as well.

36.  The applicant’s sentence had therefore been enhanced by the sentencing judge by 2 years’ imprisonment for both aggravating features and the Court, on appeal, did not think a greater enhancement was appropriate, particularly when it was dealing with just under half a kilogramme of cocaine narcotic.  It is in that context that the enhancement of only 1 year for being a Form 8 recognizance holder in Fitri, where the quantity concerned was 454.13 grammes of cocaine narcotic, should be seen.

37.  It is further to be noted that the appeal by Fitri to the Court of Final Appeal against her sentence was refused by the Appeal Committee (Ribeiro, Tang and Fok PJJ) under Rule 7(2) of the Hong Kong Court of Final Appeal Rules, Cap 484, on 27 October 2017.